N.L.R.B. v. Spring Road Corp.

• Decision Date: 27 June 1978
• Docket Number: Nos. 77-2082,77-2103,s. 77-2082
• Citation: 577 F.2d 586
• Parties: 98 L.R.R.M. (BNA) 3309, 84 Lab.Cas. P 10,712 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPRING ROAD CORPORATION, d/b/a Community Convalescent East, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOUISIANA CORPORATION, INC., d/b/a Convalescent West, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 586

577 F.2d 586

98 L.R.R.M. (BNA) 3309, 84 Lab.Cas. P 10,712

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPRING ROAD CORPORATION, d/b/a Community Convalescent East,

Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOUISIANA CORPORATION, INC., d/b/a Convalescent West, Respondent.

Nos. 77-2082, 77-2103.

United States Court of Appeals Ninth Circuit.

June 27, 1978.

Linda Dreeben (argued), San Francisco, Cal., for petitioner.

Alan S. Levins (argued) of Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before TUTTLE, ^* DUNIWAY and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Board seeks enforcement of its order requiring two corporations (the Employers)to bargain in good faith with Hospital and Institutional Workers Local 250 (the Union). Enforcement is granted.

FACTS:

In November 1974 the Union won consent elections in identical units at two convalescent homes operated by the Employers. They filed timely objections claiming unlawful Union interference with a free and fair election and asked the Board to set it aside. The Board ordered an evidentiary hearing on one objection (waiver of initiation fees) and overruled the others without a hearing. An Administrative Law Judge heard the fee waiver objection and found it without merit. The Board agreed.

On July 22, 1976, the Board certified the Union as bargaining representative for employees at the homes. On August 10 the Employers refused to bargain. The Union charged them with unfair labor practices for refusing to bargain in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act. 29 U.S.C. § 151 et seq. The Board summarily issued a bargaining order.

DISCUSSION:

The Employers concede the refusal to bargain, but contend that the Board incorrectly overruled their objections to the certification election, which charged the Union with (a) making false promises of benefits and other material misrepresentations; (b) stuffing the ballot box; (c) coercing voters with threats and violence; and (d) offering to waive initiation fees in exchange for votes.

1. Propriety of Denying Evidentiary Hearings.

The Board overruled without a hearing all but the fee waiver objection. We shall upset that determination only if the Board abused its discretion. Alson Mfg. Aerospace Div. of Alson Industries v. NLRB, 523 F.2d 470, 471 (9th Cir. 1975); NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, 1133 (9th Cir. 1973).

To obtain a hearing on the charge that the Union unlawfully promised benefits, the Employers had to make a prima facie showing of "campaign trickery . . . which prevents (an) effective reply (and significantly affects) the election." Hollywood Ceramics Co., Inc., 140 N.L.R.B. 221, 224 (1962). ¹ See also NLRB v. Aaron Bros. Corp., 563 F.2d 409, 411 (9th Cir. 1977).

The Board found that the Union's promises of benefits ² were mere "puffing," dependent upon "contingencies beyond a union's control" and therefore less significant than if made by an employer. The Employers argued that the Union guaranteed increased benefits if it won the election. The record does not support that contention. Other objections to alleged Union misrepresentations were similarly overruled for want of support. We have reviewed the record and conclude that the Board did not abuse its discretion.

The Employers also assert that their charge of ballot box stuffing merited a hearing. An election observer recalled that, of 15 eligible voters, one named Smith and two others did not vote. Fifteen ballots were tallied, but two were cast by ineligible voters. The observer concluded, as the Employers alleged, that one person voted twice. Smith did vote so the number of votes cast corresponded to the number of eligible voters. Because the Employers could offer no other support for this objection, the Board correctly overruled it.

Finally, to obtain a hearing on the charge of alleged Union threats and violence, the Employers had to show that the Union's misconduct interfered with free choice, for or against a bargaining representative. The Employers filed affidavits describing pre-election rumors of vandalism ³ but, because no employees had seen the alleged incidents or facts linking them to the Union, the Board denied an evidentiary hearing.

The Employers contend that their proof was adequate to require a hearing because the issue is not whether the evidence links the Union with the rumored incidents, but whether an atmosphere of intimidation existed at the time of the election. In Aaron Bros., however, we said that "activities . . . which are not attributable to the union itself are entitled to less weight" in determining whether a free election was possible. 563 F.2d at 412. More recently, we have stressed that "where the source of the questionable conduct is not the union or the employer, . . . the Board and the courts are especially hesitant to set aside an election." NLRB v. Heath Tec Division, 566 F.2d 1367, 1372 (9th Cir. 1978).

The Board, considering the absence of facts linking the Union to the vandalism and threats, and the nature of the allegedly intimidating conduct, correctly held that the Employers had not made a showing sufficient to require a hearing.

2. The Fee Waiver Objection.

Because the Board granted a hearing on this objection and overruled it based on the findings of the Administrative Law Judge, we must determine whether that action is supported by substantial evidence on the record. 29 U.S.C. §§ 160(e) and (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-78, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Supreme Court has held that, where signed authorization cards are the basis for an election, a union may not promise initiation fee waivers to those who sign cards and withhold the waiver from others. NLRB v. Savair Mfg. Co., 414 U.S. 270, 277-80, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). In...